A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: Pesticides, International Trade

In Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, No. 20-72794, 2022 WL 1162310 (9th Cir. Apr. 20, 2022), the plaintiff’s argued that the Environmental Protection Agency (EPA) denied its petition to cancel the registration of the pesticide tetrachlorivinphos (“TCVP”) for use in pet flea and tick prevention collars without adequate explanation and based on mistaken calculations. The court found that EPA’s denial of plaintiff’s petition lacked substantial evidence. The court vacated EPA’s denial and remanded for a revised EPA response within 120 days.

In StarKist Co. v. United States, 29 F.4th 1359 (Fed. Cir. 2022), an importer of ready-to-eat tune salad from Ecuador filed a suit against U.S. Customs and Border Protection challenging the classification of its product as “fish, in whole or in pieces, but not minced” and “in oil.” The Court of International Trade granted summary judgment in favor of the government and denied the importer’s motion. The importer appealed. Starkist wanted their product to be classified as “products containing meat of crustaceans, molluscs or other aquatic invertebrates; prepared meals,” which carries a 10% ad valorem tax as opposed to the 35% ad valorem that the current classification carries. Alternatively, plaintiffs argued that their product should be classified as tuna that is not minced and not in oil, which carries a 6% ad valorem tax.

The court found that the tuna salad product was chunky, and did not fall within the meaning of the term “minced.” The court then turned to whether the product fit the classification of “in oil.” A product is “in oil” if it is “packed in oil or fat, or in added oil or fat and other substances, whether such oil or fat was introduced at the time of packing or prior thereto.” A product is not “in oil” if the product incidentally contains oils a result of their preparation. The court found that Starkist’s tuna salad product were properly classified as “in oil” because the oil in the tuna salad was introduced to the fish prior to packing and the oil was not merely incidental to the preparation. The court affirmed the judgment of the Court of International Trade.

REGULATORY: USDA, EPA, FWS, NOAA

UNITED STATES DEPARTMENT OF AGRICULTURE

Notice confirming the effective date of a direct final rule that notified the public of USDA’s intention to revise its regulations regarding the production or disclosure of official information in legal proceedings. Info here.

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule proposing corrections and updates to regulations for source testing of emissions under various rules. Info here.

Notice of availability of draft National Pollutant Discharge Elimination System general permits for discharges from sites engaged in certain dewatering and remediation activities to certain waters in the Commonwealth of Massachusetts and the State of New Hampshire, sites in Connecticut and Rhode Island located on Indian Country lands, and federal facilities in Vermont. Info here.

Notice announcing that the EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Info here.

FISH AND WILDLIFE SERVICE

Notice announcing that the United States, as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), may propose amendments to the CITES Appendices for consideration at meetings of the Conference of the Parties. Info here.

NATIONAL OCEANIC ATMOSPHERIC ADMINISTRATION

Notice announcing that a Letter of Authorization has been issued to Shell Offshore Inc. for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. Info here.

Notice announcing that NOAA/NMFS has received a request from the Bureau of Land Management for authorization to take marine mammals incidental to the Punta Gorda Lighthouse Stabilization Project in Humboldt County, California. Info here.